Bernard v. Gulf Oil Corporation Brief for Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 87-2033

WESLEY P. BERNARD, et al.,
Plaintiffs-Appellants. 
v.

|guGULF OIL CORPORATION, et al..
( DeDefendants-Appellees

On Appeal From The United States District Court 
For The Eastern District Of Texas 

Beaumont Division

BRIEF FOR APPELLANTS

ULYSSES GENE THIBODEAUX 
Newman & Thibodeaux 
1925 Enterprise Boulevard 
Lake Charles, Louisiana 70601 

(318) 439-1060
STELLA MARIE MORRISON 
1015 East Gulfway Drive 

Port Arthur, Texas 77640 
(409) 985-9358

JULIUS LeVONNE CHAMBERS 
JUDITH REED 
ERIC SCHNAPPER 
PAMELA KARLAN

NAACP Legal Defense & 
Educational Fund, Inc. 

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Counsel for Plaintiffs-Appellants



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 87-2033

WESLEY P. BERNARD, et al. ,
Plaintiffs-Appellants.

v.
GULF OIL CORPORATION, et al. ,

Defendants-Appellees.

CERTIFICATE OF INTERESTED PERSONS 
The undersigned counsel of record certifies that the 

following listed persons have an interest in the outcome of this 
case. These representations are made in order that Judges of 
this Court may evaluate possible disqualification or recusal. 

Plaintiffs: Wesley P. Bernard
Hence Brown 
Rodney Tizeno 
Willie Johnson 
Elton Hayes 
Doris Whitley
All blacks employed in hourly positions at 
the Port Arthur refinery of the Gulf Oil 
Corporation on or after December 26, 1965.



Defendants: Gulf Oil Corporation
Oil Chemical and Atomic Workers' International, 

and its Local No. 4-23 
Bricklayers, Masons, and Plasterers

International and its Local No. 13 
International Association of Machinists and 

Aerospace Workers and its Port Arthur 
Lodge No. 823

International Brotherhood of Electrical 
Workers and its Local No. 390 

United Transportation Workers International 
Union and its Port Arthur Local 

Chevron Corporation, parent company of the 
defendant Gulf Oil Corporation.

Appellants

ii



STATEMENT REGARDING ORAL ARGUMENT
Plaintiffs-appellants hereby request that this case be set 

for oral argument. This appeal involves more than half a dozen 
distinct and important legal issues. In most instances either 
the nature of the issue or the relevant facts cannot be gleaned 
from the opinion of the district court. Although the resolution 
of many of the issues on appeal should not be difficult, we 
believe that oral argument would be valuable to the court in 
discerning the nature of the questions requiring decision.

iii



TABLE OF CONTENTS
Page

Certificate of Interested Persons .................  i
Statement Regarding Oral Argument .................  iii
Table of Authorities ...............................  iv
Statement of Jurisdiction .......................... 1
Statement of the Issues Presented .................  1
Statement of the Case ..............................  2
Statement of the Facts..............................  4

(1) Craft Promotion Tests ...................  5
(2) Denials of Promotions Based on

Sickness and Accident ...................  6
(3) Abrogation of Minority Seniority

Rights: Stipulation 29 ..................  7
(4) Bona Fides of the Seniority System .....  12
(5) Promotions To Supervisory Positions ....  18

Summary of Argument ................................  19
Argument ............................................  21

I. Gulf's Craft Promotion Tests Were
Not Job-related .......................... 21
(1) The Old Test ........................ 21
(2) The New Test ........................ 2 3

II. Gulf Engaged In Intentional Dis­
crimination in Denying Promotions
Based on Sickness and Accident Records... 29

III. The Defendants Unlawfully Abrogated
the Seniority Rights of Blacks .......... 32

IV. The Seniority System Was Not Bona Fide .. 34

iv



V. Gulf Engaged in Intentional Discrim­
ination in Making Promotions to
Supervisory Positions ...................  37

VI. Union Liability.......................... 39
VII. The District Court Erred in its Ruling

on Individual Claims ....................  39
VIII. The District Court Erroneously 

Restricted the Scope of the Plaintiff
Class ....................................  42

IX. The District Court Erred in Not 
Admitting Defendants' Business
Records ..................................  4 6

Conclusion ..........................................  49

v



TABLE OF AUTHORITIES

Cases: Page
Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975) .............................  21,22,23,26
Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974) ..............................  43
American Tobacco Co. v. Patterson,

456 U.S. 63 (1982) ..............................  33
Bernard v. Gulf Oil Corp., 619 F.2d 459 

(5th Cir. 1980) (en banc), af f'd
452 U.S. 89 (1981) ..............................  3,44

Boykin v. Georgia-Pacific Corp., 706 F.2d 1384 
(5th Cir. 1983), cert, denied.
465 U.S. 1006 (1984) ............................  30

Bunch v. Bullard, 795 F.2d 384
(5th Cir. 1986) .................................  23,30

California Brewers v. Bryant,
444 U.S. 598 (1980) .............................  32

Carmichael v. Birmingham Saw Works,
738 F. 2d 1126 (11th Cir. 1984) .................  40

Chaiffetz v. Robertson Research Holding,
798 F . 2d 731 (5th Cir. 1986) ...................  30,32

Donaldson v. Pillsbury Co., 554 F.2d 825
(8th Cir. 1977), cert, denied. 434 U.S. 856.... 40

Ensley Branch of NAACP v. Seibells,
616 F.2d 812, aff'q in part and rev'q in part
14 FEP Cas. 670 (N.D. Ala. 1977) ...............  28

Griffin v. Carlin, 755 F.2d 1516
(11th Cir. 1985) ................................  40

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ....21, 22,29,32,33
Guardians Ass'n of New York Police Dep't v.

Civil Service Comm'n, 630 F.2d 79
(2d Cir. 1980) ..................................  28

Gulf Oil Corp. v. Bernard, 452 U.S. 89 (1981) ....  44,45

vi



Cases: Page
James v. Stockham Valves & Fittings Co.,

559 F . 2d 310 (5th Cir. 1977) ...................  27,34,38
Jenkins v. United Gas Corp., 400 F.2d 28

(5th Cir. 1965) .................................  38
Johnson v. Goodyear Tire & Rubber Co.,

491 F . 2d 1364 (5th Cir. 1974) ..................  22
Lams v. General Waterworks,

766 F . 2d 386 (8th Cir. 1985) ...................  42
Local 53 v. Vogler, 407 F.2d 1047

(5th Cir. 1969)   22
Local 189, United Papermakers & Paperworkers 

v. United States, 416 F.2d 980
(5th Cir. 1969)   22

Mosley v. St. Louis Southwestern Railway,
634 F.2d 942, (5th Cir.)

cert, denied. 452 U.S. 986 (1981) ..............  43,45
Nanty v. Barrows, 660 F.2d 1327

(9th Cir. 1981)   42
Payne v. Travenol Laboratories,

673 F .2d 798 (5th Cir. 1982)
cert, denied. 459 U.S. 1038 (1983) .............  30

Pettway v. American Cast Iron Pipe Co.,
494 F . 2d 211 (5th Cir. 1974) ...................  22,27

Ratliff v. Governor's Highway Safety Program,
791 F . 2d 394 (5th Cir. 1986) ...................  30

Rivier.a v. City of Wichita Falls,
665 F. 2d 531 (5th Cir. 1982) ...................  27,28

Rogers v. General Electric Co.,
781 F . 2d 452 (5th Cir. 1986) ...................  43

Teamsters v. United States,
431 U.S. 324 (1977) .............................  33,34

Terrell v. United States Pipe & Foundry Co.,
644 F . 2d 1112 (5th Cir. 1981) ..................  34

United States v. Georgia Power,
474 F . 2d 906 (5th Cir. 1973) ...................  22

vii



Cases; Page
Watkins v. Scott Paper Co.,

530 F. 2d 1159 (5th Cir. 1976) ..................  27

Statutes. Rules, and Regulations:
28 U.S.C. § 1291 ....................................  1
42 U.S.C. § 1981 ....................................  3
29 C.F.R. § 1607.4 (c) ..............................  23
29 C.F.R. § 1607.14 (B)(6) ......................... 28
Rule 1, Fed. R. Civ. P ..............................  48
Rule 5(a), Fed. R. Civ. P ...........................  47
Title VII of the 1964 Civil Rights Act............. 3

Other Authorities:
B. Schlei & P. Grossman, Employment

Discrimination Law. (2d ed. 1983) ............. 27

viii



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 87-2033

WESLEY P. BERNARD, et al..
Plaintiffs-Appellants. 
v.

GULF OIL CORPORATION, et al..
Defendants-Appellees.

On Appeal From The United States District Court 
For The Eastern District Of Texas 

Beaumont Division

BRIEF FOR APPELLANTS 
STATEMENT OF JURISDICTION

The decision of the district court resolving the merits of 
this case was issued on September 18, 1986. A timely motion to 
alter or amend the judgment was denied on December 8, 1986.
Plaintiffs-appellants' notice of appeal was filed on January 5, 
1987. This court's jurisdiction is invoked under 28 U.S.C. § 
1291.

STATEMENT OF THE ISSUES PRESENTED
(1) Did the district court err in holding that as a matter 

of law written tests in use prior to 1972 were exempt from the 
Title VII prohibition against tests with a discriminatory effect?



(2) Did the district court err in holding that the
promotion test utilized by Gulf since 1971 was job-related?

(3) Did the district court err in holding that Gulf did not 
engage in intentional discrimination in evaluating the sickness 
and accident records of workers seeking promotions?

(4) Did the district court err in holding that Stipulation 
29, which abrogated seniority rights in a manner having 
discriminatory effect on blacks, did not violate Title VII?

(5) Did the district court err in holding that the
seniority system was bona fide?

(6) Did the district court err in holding that Gulf had not 
engaged in intentional discrimination in the selection of 
supervisors?

(7) Did the district court err in holding that the union 
defendants were not liable for any proven violation of Title VII?

(8) Did the district court err in its disposition of the 
claims of the individual plaintiffs?

(9) Did the district court err in partially decertifying 
the class to exclude class members who had signed releases, where 
there was evidence indicating the releases were not knowing and 
voluntary?

(10) Did the district court err in refusing to consider 
union and company records offered in evidence by the plaintiffs?

STATEMENT OF THE CASE
This action was commenced in May, 1976, by six present and 

retired black employees at the Gulf Oil Corporations, Port 
Arthur, Texas, refinery. The plaintiffs, who are also present or

2



former members of the Oil, Chemical and Atomic Workers' Union, 
Local 4-23 ("OCAW") alleged that Gulf, the OCAW, and several 
other unions engaged in broad range of employment discrimination 
against black employees. Plaintiffs sought declaratory, 
injunctive, and monetary relief, pursuant to 42 U.S.C. § 1981 and 
Title VII of the 1964 Civil Rights Act. The Title VII claim is 
premised, inter alia, on a complaint filed with EEOC on June 24, 
1967. (Record Excerpt ("RE") 22; Class Cert. Ex. 1-1, 2, 3).

In 1976, following the filing of the complaint, the district 
court issued an order forbidding counsel for the plaintiff class 
from communicating with the class members about the pending case. 
(Record ("Rec.") 26). In 1977 the district court dismissed 
plaintiffs' Title VII claims on procedural grounds, and granted 
defendants summary judgment on the § 1981 claims. This court 
reversed, holding that the gag order was improper, and remanded 
the case. Bernard v. Gulf Oil Coro. . 619 F.2d 459 (5th Cir. 
1980) (en banc), aff'd. 452 U.S. 89 (1981). On January 24, 1983, 
the district court, following an evidentiary hearing, certified a 
plaintiff class that included all black persons who were employed 
in union jobs at Gulf's Port Arthur refinery on or after December 
26, 1965. On the eve of trial, the district court issued sua 
soonte an order effectively excluding from the class a large 
number of class members, based largely on certain disputed 
releases obtained by Gulf during the period when the unlawful gag 
order was in effect. (RE 52) . This order also dismissed all 
defendant unions except for the OCAW. Id.

3



The case was tried in April 1984, and the record for several 
months thereafter remained open for the submission of additional 
documentary evidence. (Rec. 1666, 1692). Subsequently the
district court declined to admit certain business records of the 
defendants which the plaintiffs had sought to introduce. (RE 
65). On September 18, 1986, the district court issued a
Memorandum Opinion rejecting on the merits all of plaintiffs' 
claims. (RE 21).

STATEMENT OF THE FACTS
The Port Arthur Refinery at issue in this case refines crude 

oil into a variety of commercial products. The plant began 
operations early in the century, and was unionized in the 1940's. 
(Trial Transcript ("Tr.") 12). During most of the period prior
to 1965 the refinery and unions were organized on an avowedly 
racial basis. Blacks were hired only into certain jobs and could 
not promote into white positions.1 The highest paid "colored" 
job received a lower hourly wage than the worst paid entry level 
"white" job. (Tr. 1008-09). Washrooms, water fountains, and 
other facilities were segregated. Blacks actually worked in most 
departments throughout the refinery, but were organized along 
racial lines. The unions other than the (OCAW) sought to 
represent only white jobs. The OCAW chartered two separate 
locals at the refinery; Local No. 23 represented white workers 
and Local No. 254 represented black workers. (RE 23-24, 30-31).

By 1965 neither the company nor the unions maintained 
expressly racial policies but virtually all blacks in the

1 Tr. 21-22, 144-45, 212-13, 220, 281, 996, 999, 1000.
4



refinery were still confined to the positions designated as 
colored jobs during the era of overt discrimination. During the 
years following enactment of Title VII virtually all desirable 
promotions at the refinery continued to go to whites only. 
(Plaintiffs' Exhibit ("PX") 16, 37, 38) . This appeal concerns
the legality of five promotion practices which were in effect at 
the refinery in the period following 1965. Most of the relevant 
facts are not in dispute.

(1) Craft Promotion Tests
Employees seeking to promote into a craft position at the 

refinery have often been required by Gulf to pass a written 
examination. The same test was utilized for 14 different jobs, 
including such diverse positions as carpenter, painter, welder, 
insulator and boilermaker. (PX 87) . Between 1947 and 1971 a 
test, referred to as the Old Test, was used for all fourteen 
positions. After 1971 a different examination, referred to as 
the New Test, was utilized. The New Test consisted of several 
different parts dealing inter alia with chemical, mechanical, and 
arithmetic reasoning. The New Test was also utilized for all 14 
positions; thus an employee might be barred from a job as a 
carpenter because of a lack of understanding of chemistry, or 
from a painter's job because of a low score in mathematics. (RE 
35-36, 40-41).

The district court correctly concluded that both the Old
Test and the New Test had an adverse impact on blacks.

82.5% of whites who took the Old Tests between January 
1969 and March 1971 ultimately passed. Only 42.8% of 
blacks who took the same tests during that period 
ultimately passed. Between 1971 and 1980, 97.7% of the

5



whites who took the New Tests passed them, while only 
66% of the blacks who took those tests passed. (RE 
16) .

The district court concluded that these findings established 
"adverse impact because the proportion of blacks passing the 
tests is less than 80% of the proportion of whites passing the 
tests. See C.F.R. 1607.4(D) (1981)." (RE 36).2

The adverse impact of the New Test was particularly extreme. 
For all practical purposes the sole effect of the New Test was to 
bar blacks from craft promotions. Among the 174 whites who took 
the New Test only 3 failed it. Overall 90% of those who failed 
the New Test were black, even though only 33% of the test takers 
were black. (PX 27, Defendants' Exhibit (DX) 108). Gulf's own 
testing expert conceded it would be irrational to use any test 
passed by virtually all whites. (Tr. 930-31). The issues 
presented on appeal concern whether the disputed tests were job 
related.

(2) Denials of Promotions Based on Sickness 
and Accident

Gulf ordinarily awarded craft vacancies to the senior 
eligible bidder who could pass the test. The collective 
bargaining agreement, however, also accorded to Gulf the right to 
reject or "bypass" the senior bidder because of his sickness and 
accident ("S and A") record. (RE 41-42) . Prior to 1975 Gulf 
chose not to reject senior bidders on that basis. Between 1975

 ̂ To be exact, the pass rate of blacks on the Old Test 
was only 52% of the pass rate of whites (12 out of 28 Blacks and 
33 out of 40 whites passed: PX 25; DX 131). For the New Test, 
the pass rate of blacks was only 66.3% that of whites (56 of 86 
blacks and 171 out of 174 whites passed: PX 27; DX 108).

6



and 1980, however, Gulf bypassed 33% of all black senior bidders, 
compared to only 22% of whites. (PX 29) . Black senior bidders 
were bypassed while comparable whites were merely warned about 
their sickness and accident records.3 Gulf did not apply an 
objective mechanical test in determining which bidders to reject 
because of their S and A record. Rather, as the district court 
noted, the company inspected the bidder's record and made a 
discretionary judgment as to who was "satisfactory." (RE 41-42). 
Thus the authority to bypass a bidder because of his or her S and 
A record came to be used so broadly as to give Gulf considerable 
ability to select the bidder of its choice regardless of the 
seniority of the other employees seeking a particular promotion. 
Although Gulf evidently scrutinized only the S and A records of 
employees who had missed more than 80 hours of work in the prior 
year (RE 41), that group, understandably, encompassed a 
substantial proportion of all senior bidders.4

(3) Abrogation of Minority Seniority Rights;
Stipulation 29

Under the Gulf/OCAW seniority system, as it existed in 1965, 
most workers afforded advantageous seniority rights were white. 
However, under the seniority rules as they existed in 
1965 blacks were in a position to fill most vacancies in the

J Tr. 372, 380, 440-45, 578-83.
4 Eighty hours a year is equivalent to 10 days of work. 

By comparison, in 1981 the average American was disabled by 
illness or injury a total of 18 days. Statistical Abstract of 
the United States, 1985, p. 113.

7



f

lucrative craft jobs. Prior to 1967, selections for a craft job 
occurred under what was, in effect, a line of progression:

Pipefitter

Mechanic Trainee

Pipefitter Helper

Mechanical Helper Pool

Utility Man

Whenever Gulf decided it wanted another pipefitter, pipefitter 
helpers could bid on the job on the basis of plant seniority. 
The successful senior bidder then became a mechanic trainee, and 
was placed in a three year training program, at the end of which 
he automatically became a craftsman. Virtually every entrant 
successfully completed the training program. When the promotion 
of a pipefitter helper created a vacancy at that level, it was 
filled, again on the basis of plant seniority, from workers in 
the mechanical helper pool, whose vacancies were filled in turn 
from the utility man level. PX 30, DX 38, Tr. 249-50).

As of 1965 the pipefitter helpers were almost all 
comparatively junior whites, whereas there were large numbers of 
very senior black utility men. For example, as of January 1967 
there were 110 utility men, all of them black, with at least 23

8



years of plant seniority; among pipefitter helpers, however, 
there were only 6 workers with that much seniority. The most 
senior pipefitter helper was hired on June 25, 1934; there were 
39 utility men with more plant seniority. (PX 18; DX 103). 
.Although under the 1965 rule the first promotions in any craft 
would necessarily have gone to a pipefitter helper, the 
pipefitter helper positions would then quickly have been filled 
by the most senior utility man, who would thereafter have been 
next in line for craft vacancies. Since large numbers of black 
utility men had more seniority than any helper, most subsequent 
promotions would have gone to black utility men who became 
helpers after 1965 rather than to the whites who were helpers in 
that year. Thus, under the craft selection system as it existed 
prior to 1967, new mechanic trainees and craftsmen would, as a 
practical matter, have been chosen on the basis of plant 
seniority from among the helpers and utility men as a group.

The black utility men were never permitted, however, to 
exercise those seniority rights. Instead, in 1967 Gulf and the 
OCAW agreed, as the district court noted, simply to 
"reclassif[y]" the craft helpers as mechanic trainees. (RE 34). 
A total of 203 pipefitter helpers became craftsmen in this 
manner. (PX 9, 133; Tr. 31, 984-85) In no instance before or 
after the implementation of Stipulation 29 did employees become 
craftsmen simply by being "reclassified." Under Stipulation 29 
no vacancies were ever posted, and no employees other than the 
helpers were eligible for the program. The seniority of the more 
senior utility men simply could not be utilized to qualify for

9



"reclassification;" Stipulation 29 abolished with the stroke of a 
pen the seniority rights of utility men to use their seniority to 
obtain craft positions ahead of more junior helpers. (Tr. 230- 
34, 283-85, 1263-69, 1281).

Several aspects of Stipulation 29 were particularly 
noteworthy. First, Gulf did not of course assert that it 
suddenly needed 203 new craftsmen in 1967. The total number of 
new craftsmen was completely out of line with the normal rate at 
which craftsmen were selected and trained. There were apparently 
no new craftsmen chosen in 1965, and only 12 in 1966.5 During 
the seven years from 1967 through 1973 Gulf added only a total of 
106 craftsmen, or 15 per year. (DX 110) . The one time 
reclassification under Stipulation 29 created more new craftsmen 
than were filled by promotion during the entire decade between 
1965 and 1974. Stipulation 29 did not fill then existing 
vacancies, but effectively preempted, and removed from normal 
seniority bidding, all vacancies that might arise for years into 
the future. Under Stipulation 29, for example, 86 boilermaker 
positions were filled with one blow in 1967; between 1967 and 
1973 only 1 boilermaker position was filled by seniority-based 
promotion.6

The total number of mechanic trainees in each year are 
set forth in PX 87. Because the trainees are in a three year 
training program, the new trainees chosen in a given year can be 
roughly determined by comparing the number of trainees in one 
year with the number in previous years.

6 See PX 87. There were no other new pipefitter trainees 
selected in 1967, 1968, 1969, 1970 or 1972. In 1971 Gulf added 
eight mechanic trainees, but seven of them were minorities 
promoted as the result of the 1971 conciliation agreement with 
the Interior Department.

10



Second, the adverse impact of the Stipulation 29 
reclassification was severe. Under the pre-1967 seniority system 
the overwhelming majority of the most senior mechanical helpers 
and utility men, considered as a group, were black. After 1967, 
when the helper position was abolished and craft jobs were opened 
to bidding by almost all workers in the plant, blacks constituted 
over 40% of the senior bidders.7 Among the 203 individuals 
reclassified into craft positions under Stipulation 29, however, 
only 9, or 4.4%, were black.8 In addition, the benefits of 
Stipulation 29 were not extended to all craft helpers. The 
district court apparently believed that all craft helpers were 
reclassified as mechanic trainees. (RE 34) . In fact, however, 
the very terms of Stipulation 29 are expressly limited, extending 
to "[a]11 employees in the mechanical sections ... excluding 
employees in the Bathhouse Attendant, Truck Driver, Lift Truck 
Operator, Truck Driver Special, and Truck Driver Electrical 
classifications." (Class Cert. Ex. B-2). With the exception of 
the Bathhouse Attendant position which contained relatively few

DX 131; PX 25. Among the 68 senior bidders eligible to 
take the Old Test between 1969 and 1971, 23 were black.

PX 9 lists all helpers who took the Stipulation 29 
simple test. Only one of them, a white, failed the test.(PX 13) .

11



employees, 100% of the employees in the excluded classifications 
were black.9

(4) Bona Fides of the Seniority System
In 1965, as today, promotions to better paying operations 

jobs10 were made on the basis of the Gulf-OCAW seniority system. 
As of 1965 virtually all the workers in the Labor Division were 
black, while the Operating and Mechanical or Operating and 
Maintenance Division, where all the better paying jobs were 
found, was overwhelmingly white.11 Under the terms of the 
seniority system blacks in the Labor Division could bid only on 
the lower paid entry level O & M positions; when vacancies in the 
best paid O & M jobs arose, only certain existing O & M employees 
could apply. As of 1965 there were 85 different 0 and M jobs 
paying over $3.50 per hour; blacks were eligible to bid on only 
13 of these. (PX 37, 38). Because of these rules it was not
until many years after the effective date of Title VII that black 
workers were permitted to bid on the best paying 0 and M 
operations jobs, or to use their plant seniority to reach their 
rightful places, holding positions comparable to whites of

9 JX 96; JX 98.
10 The discussion which follows is also applicable to the 

seniority rules governing selection for craft jobs represented by 
unions other than the OCAW. Gulf workers outside of these crafts 
are not permitted to use their seniority if they applied for 
these jobs, despite the fact that black Gulf employees have long 
worked on several of the crafts involved. See pp. 35, infra.

11 The Port Arthur refinery was divided into two major
divisions: Labor and Operating - Mechanical ("O & M") . It is
this latter Division to which the district court repeatedly but 
incorrectly refers as the "Craft Division." Within the divisions 
were departments which contained lines of progression or LOP's. 
DX 30.

12



similar seniority. Between 1965 and 1970, for example, Gulf 
promoted a total of 47 workers into No. 1 operator jobs, the best 
paid operating position; despite the fact that there were large 
numbers of blacks with many decades of seniority at the refinery, 
only one of these promotions went to a black. (DX 98).

The seniority system at the Port Arthur refinery was 
structured so that the actual operation of the refinery itself 
was not segregated. (RE 24) . Blacks were permanently assigned 
to work with whites at each of the various facilities at the 
refinery, as well as on most of the crafts. (Tr. 649-59). The 
separation between blacks and whites existed only on paper in the 
provisions of the seniority system. As of 1965 there were blacks 
in almost all of the well paid O & M departments, and these black 
employees were actually listed as members of these departments. 
But blacks and whites who worked together day in and day out 
were, for seniority purposes, in completely separate "divisions." 
All blacks in the plant, no matter how unrelated their work, were 
in the Labor Division, and all whites in the plant, regardless of 
their job responsibilities, were in the Operating and Maintenance 
Division. The contours of this seniority system reflected, not 
where employees worked or what they did, but the color of their 
skin.

The precise manner in which the Port Arthur refinery system 
emerged can be ascertained by comparing the seniority rosters for 
1950 and 1960. (JX 34, 36); the table of contents for each of 
those rosters is reproduced in the Record Excerpts (RE 70-71). 
In 1950 there were a total of thirty-five departments at the

13



refinery. Of these, four were non-OCAW crafts,12 six 
corresponded to what are present OCAW crafts, 13 twenty-three 
were operations units, and there was a separate labor department. 
But most blacks were not listed in the labor department at all, 
but were included instead in four of the craft departments and 
sixteen of the operations departments. Black workers in these 
craft and operating departments performed many of the same tasks 
as whites and at times trained newly hired white workers.14 In 
the twenty integrated craft and operations departments, however, 
there were two distinct seniority rosters, one denoted "white" 
and one denoted "colored." (RE 70). In 1950, of course, a black 
employee in the boilermaker, waste oil, or machine shop
department could not bid on the better paying jobs in those 
units. Such a black employee had far more relevant experience 
than a white from some other department, but jobs were allocated 
on a strictly racial basis; a black man in a "colored" job in the 
waste oil department was forbidden to bid on a "white" job in 
that department. (RE 24) . In 1950, during an era of open
discrimination, there was no pretense that this restriction was 
based on anything but race.

By the time of the 1960 seniority roster whites and blacks
were separated into the virtually all-white O & M Division, and

12 Bricklaying, electric shop, machine shop, and 
transportation.

13 Boiler shop, carpenter, shop, instrument, insulating, 
paint shop, pipefitting, welding.

14 Tr. 109-10, 112, 157, 219-20, 340-41, 348-49, 521, 
1158-68, 1179-82, 1184-85, 1199, 1212, 1217-18, 1276, 1279.

14



the all-black Labor Division. But these divisions did not 
reflect any actual redistribution of black and white workers 
within the refinery. On the contrary, the number of craft and 
operating departments with black employees remained unchanged. 
Hundreds of black employees continued to actually work either at 
crafts or at an operating facility, and the jobs they performed 
were the same. All that changed between 1950 and 1960 was that 
the heading of the lists of positions held by blacks was altered 
in the seniority roster from "colored" to "Labor Division" and 
the heading of the lists for whites was changed from "white" to 
"Operating-Mechanical Division." The contours of the Labor 
Division were exactly the same as the old "colored" roster, and 
fell along racial rather than work related lines. Throughout the 
refinery whites and blacks who worked every day side by side at 
the same facility or craft were technically in separate 
divisions; on the other hand, whites in 29 different departments, 
employees whose work was totally unrelated, who had no 
understanding of one another's jobs, and who had entirely 
distinct skills and experiences, were all technically in the same 
division. In at least some instances, if a black succeeded in 
promoting into an O & M job, his job would then be transferred to 
the Labor Division, even though a white doing the same job would 
remain in the 0 & M Division. (Tr. 1217-18).

The separation of related jobs on the basis of race was not 
limited to positions represented by the OCAW. As of 1960 there 
were 2 0 bricklayers and 1 bricklayer helper, all white, in the 
Bricklayers Department who were represented by the Bricklayers

15



Union. (JX 40, pp. 4-5) . But the Bricklaying Department also 
had 30 other workers whose job was "utility man special 
bricklayer helper," and all of these employees were black. 
Despite the fact that the white bricklayers and the black 
bricklayer helpers obviously worked together on related tasks, 
the white bricklayers were in the O & M Division, and were 
represented by the Bricklayers Union, while the black bricklayer 
helpers were in the Labor Division and were represented by the 
OCAW. Similarly, although the white employees in the Machine 
Shop Department were in the O & M Division and were represented 
by the International Association of Machinists, the black 
employees in that Department were in the Labor Division and were 
represented by the OCAW.15

Other events surrounding the emergence of separate Labor and 
O & M Divisions confirm the racial motives of those who framed 
that system. Prior to 1954, as the district court noted, there 
was an unwritten understanding at the Port Arthur refinery that 
blacks were not to bid on positions designated in the seniority 
roster as "white" jobs. (RE 24) . In 1954 a black worker 
violated that unwritten rule and bid on a white job. (Tr. 963). 
Company officials called in union representatives and admonished 
them "you have got a problem." (Tr. 1000). The written rules in 
1954 literally permitted such bids by blacks; had the official 
selection rules then in effect been retained, blacks willing to 
bid on white jobs would have won a large proportion of those

15 JX 40, pp. 81, 125-26; Tr. 152, 317, 1022, 1173-78, 
1184-85, 1216-17.

16



positions, since there were hundreds of relatively senior blacks 
in low paid "colored" jobs. Faced with the danger that blacks 
would seek to utilize seniority rules originally intended only 
for whites, the company and union agreed to suspend all 
promotions for an extended period. (Tr. 1001-03). Promotions 
did not resume until Gulf and the OCAW had agreed upon a 
completely new set of seniority and promotion rules, which 
effectively assured that no black, regardless of his experience, 
could ever win a promotion which had been sought by a white.

The new rules were restrictions on any employee seeking to 
transfer from the Labor Division to the 0 & M Division. As was 
noted above, these "divisions" were simply new designations for 
the black and white jobs in each department. An employee in the 
black Labor Division was barred from bidding on an 0 & M job 
unless none of the 0 & M workers, virtually all of them white, 
wanted the position. No employee was permitted to move from the 
Labor Division into the 0 & M Division unless he or she had a 
high school degree, and could pass a written examination. (RE 
24-25 n. 2; Tr. 24-25, 1194-95). The whites in O & M, on the 
other hand were free to transfer between departments even though 
they lacked a high school degree and had never passed the test. 
Almost half of all white O & M workers lacked a high school 
degree,16 and none had been required to take any test when they 
were hired. The white O & M employees as of 1956 were 
effectively grandfathered out of these two requirements. In 
addition, any employee transferring from a Labor to an O & M job

16 PX 17, 19, 20, DX 97, 107.
17



was, for promotion purposes, stripped of all but one day of his 
seniority. (RE 26) . Prior to 1956 promotions were made on the 
basis of plant seniority; under the new rules a black who moved 
into an 0 & M job could not thereafter rely on his plant 
seniority to win promotions; the seniority of such an employee 
was computed from the day he entered the 0 & M Division. This 
rule was based on divisional rather than departmental seniority. 
A black employee with 10 years experience in a "colored" job in 
Package and Grease lost all that seniority if he moved into a 
white job in that same department, but a white employee with ten 
years experience in a completely different department could use 
that seniority to compete for promotions in the Package and 
Grease department. As a practical matter the one-day rule 
effectively assured that, among employees hired before 1956, a 
black would never win a promotion unless no eligible white bidder 
wanted the job.

(5) Promotions To Supervisory Positions
Each year Gulf selected a number of hourly employees for 

promoting to supervisory positions. The selections themselves 
were made through a closed, almost secretive process. No notices 
were posted regarding the occurrence of vacancies, and no 
procedure existed by which a worker could apply for such a 
position. This informal covert selection process continued until 
1982, when Gulf adopted a more formal and open procedure.17

The number and proportion of blacks promoted to supervisory 
positions were as follows:

17 Tr. 66-70, 356-57, 748-49.
18



Promotions to Supervisor (PX 16)
Period Whites Blacks Proportion of Blacks
1965-70 35 1 2.9%
1971-76 70 6 8.5%
1977-82 104 15 14.4%

Blacks constituted 11.35% of the workers in the highest non- 
supervisory positions, the No. 1 jobs, (RE 42) and about one- 
fifth of the plant's total workforce. (Tr. 760) . Plaintiffs 
offered evidence regarding Gulf's failure to promote a number of 
experienced black employees (Tr. 236-40; PX 93, pp. 2-3; Tizeno 
Dep. Exhibit 22).

The district court incorrectly held that the Title VII 
prohibition against practices with a disparate impact is 
inapplicable to tests in use before 1975. The test overturned in 
Albemarle Paper Co. v. Moodv. 422 U.S. 405 (1975), was a pre-1971 
test.

The defendants failed to demonstrate that their present 
promotion test, which has a severe adverse impact on blacks, is 
job related. The company's "validation" study was admittedly 
based on skills other than the actual skills which Gulf's 
supervisors regarded as important to the jobs at issue.

The district court's finding that the seniority system was 
bona fide is clearly erroneous. That seniority system 
systematically separated into two distinct "divisions," for 
seniority purposes, blacks and whites who in practice worked 
together in the same department. The all-black Labor and all-

SUMMARY OF ARGUMENT

19



white 0 & M divisions that existed in 1965 were simply groupings 
of the same jobs referred to in 1950 as "colored" and "white," 
and those divisions were structured to place together employees 
of the same race, not employees with related duties.

In analyzing evidence of discrimination in the • selection of 
supervisors, the district court erred in lumping together all 
promotions made between 1965 and 1982. Blacks accounted for 15% 
of the promotions to supervisor between 1977 and 1982, but only 
3% of the promotions between 1965 and 1970.

The district court erred in excluding from the class persons 
who executed releases. The district court ignored the legal 
standards applicable for determining the effectiveness of a 
release under Title VII.

20



ARGUMENT
I. GULF'S CRAFT PROMOTION TESTS WERE NOT JOB-RELATED
The district court below correctly concluded that both 

Gulf's Old Test and its New Test had a substantial adverse impact 
on blacks seeking promotions to craft positions. Once the 
plaintiffs in a Title VII case establish the existence of such an 
adverse impact, the burden shifts to the defendant to establish 
that the test at issue is job related. Griggs v. Duke Power Co.. 
401 U.S. 424 (1971).

(1) The Old Test
The district court held that, as a matter of law, Gulf was

not required to validate the Old Tests. The district judge's
analysis of this issue was as follows:

So far as the Old Tests are concerned, Gulf was not 
required to validate them, for the reason that the Old 
Tests were eliminated four years before Albemarle Paper 
Co. v. Moody. 422 U.S. 405 (1975), imposed validation
requirements; and seven years before The Equal 
Employment Opportunity Guidelines in Employee Selection 
Procedures instigated validated studies. (RE 37 n.4).

The district court evidently believed that at least until the
1975 decision in Albemarle it was legal to use a non-job related
selection criteria with an adverse impact on minorities.

The prohibition against such selection criterion dates from
1965, the effective date of Title VII, not from the 1975 decision
in Albemarle. In Griggs v. Duke Power Co.. 401 U.S. 424 (1971),
the Supreme Court held that "[i]f an employment practice which
operates to exclude Negroes cannot be shown to be related to job
performance, the practice is prohibited." 401 U.S. at 431.

21



Griggs did not adopt some new legal principle to be applied only 
to post 1971 selections; on the contrary, the test at issue in 
Griggs had been adopted in 1965, and the case had been tried by 
1968. 4 01 U.S. at 428. The Supreme Court in Griggs relied on 
EEOC Guidelines on Employment Testing Procedures, prohibiting the 
use of non-job related tests, which had been issued by EEOC in 
1966.

The Supreme Court's decision in Albemarle did not, as the 
district court believed, establish some new requirement for post 
1975 employment practices. Albemarle's analysis of the legal 
issues was based largely on Griggs; indeed, one of the two tests 
held unlawful in Albemarle was the same test that had been in 
dispute in Griggs. Compare Griggs. 401 U.S. at 428 with 
Albemarle. 422 U.S. at 428 (Wonderlic test). Equally 
significant, the complaint in Albemarle had been filed in 1966 
and the case had been tried in 1971. 422 U.S. at 408-09. The 
Supreme Court in Albemarle expressly held that an award of back 
pay for the unlawful use of a test during that period was not 
only proper but ordinarily mandatory. 422 U.S. at 413— 25.

This court has repeatedly held unlawful the application of 
selection criteria in use in the years prior to Albemarle and 
Griggs. Local 53 v. Vogler. 407 F.2d 1047 (5th Cir. 1969); Local 
189, United Papermakers & Paperworkers v. United States. 416 F.2d 
980, 989 (5th Cir. 1969); United States v. Georgia Power. 474 
F.2d 906 (5th Cir. 1973); Pettway v. American Cast Iron Pipe Co.. 
494 F.2d 211 (5th Cir. 1974); Johnson v. Goodyear Tire & Rubber 
Co.. 491 F .2d 1364 (5th Cir. 1974).

22



(2) The New Test
Where, as here, plaintiffs establish that a test has an 

adverse impact on minorities, the burden shifts to the employer 
to demonstrate that the test at issue is business related. Bunch 
v. Bullard. 795 F.2d 384 (5th Cir. 1986). The job-relatedness of 
a test may be established in a variety of ways. One type of 
analysis is criterion validation, in which the test scores of 
actual employees are compared with their job performance on the 
job at issue.

To satisfy an employer's burden a criterion validation study 
must meet two essential requirements. First, the study must be 
based on "important elements of work behavior which comprise or 
are relevant to the job or jobs at issue." EEOC Guidelines, 29 
C.F.R. § 1607.4(c), quoted with approval in Albemarle Paper Co. 
v . Moody. 422 U.S. at 431. Second, the study must demonstrate
that the tests are "shown, by professionally acceptable methods, 
to be 'predictive of or significantly correlated with'" those 
elements. Id. In this case neither requirement was met.

(1) As part of its validation study of the New Tests, Gulf 
directed supervisors at the Port Arthur plant to rate the 
relative importance of 117 duties which certain craftsmen might 
perform. (DX 162) . In the case of boilermakers, for example, 
Gulf's supervisors reported that the 10 most significant work 
elements, in order of importance, were as follows:

(1) Using common hand-held non-power tools;
(2) Following safety procedures;
(3) Working at heights over 4 feet;
(4) Using common hand-held power tools;
(5) Working as a member of a team;
(6) Carrying out simple oral instructions;

23



(7) Working outside;
(8) Using handling and lifting devices;
(9) Repairing frames and platforms;
(10) Maintaining clean work area.18

Rather than use this empirically based list of 
important duty elements, however, Gulf based its validation study 
instead on a completely different list of traits, somewhat 
misleadingly labeled "performance elements." These so-called 
"performance elements" had virtually nothing in common with the 
actual duties which the supervisors reported were performed by 
craftsmen. For example, among the 24 "performance elements"
actually studied by Gulf for boilermakers, there were only two 
work elements regarded as important by Gulf's own supervisors—  
following oral instructions and working as a team.19 Many of 
these "performance elements" were rated as of little or no 
importance by Gulf's own supervisors. Thus although the 
validation study sought to establish a correlation between test 
scores and an employee's performance recording data and preparing 
records, Gulf supervisors evaluated those two performance 
elements" as 70th and 80th in importance for boilermakers. (See 
DX 162) .

The resulting study was devoid of significance as an 
assessment of whether employees with high scores were actually 
better boilermakers, or better at some other craft. Eight of the* 
ten most important work elements were not evaluated at all. 
Conversely, 22 of the 24 elements that were evaluated were

18 DX 162; RE 38 n. 6; Tr. 1082-83.

19 Compare RE 37-38 n. 5 with id. at 38 n. 6
24



regarded by Gulf's own supervisors as unimportant or irrelevant
to the work of a craftsman. The district court did not purport
to find that the validation study showed high scoring test takers
were better craftsmen; rather, the district court upheld the test
on three other novel and unsupportable grounds.

First, the district judge apparently believed that craft
positions, such as boilermaker, were only entry level jobs at the
bottom of various lines of progression. Craft positions such as
boilermaker, the district judge reasoned,

are only the first steps in a highly formalized 
promotion scheme. Because promotions are based 
entirely upon seniority, advancement in a line of 
progression is virtually assured. To be able to 
perform well in the advanced craft positions, the 
worker must be able to learn, or generalize, from his 
experience in the lower craft positions. (RE 39).

The factual premise of this argument is clearly erroneous. There
is no line of progression above the position of boilermaker, pipe
fitter, or any of the other craft positions. See, e.g. , JX 60,
p. 63. Once a Gulf employee becomes a craftsman, he ordinarily
holds that position for life. There simply are no higher level
positions in the various craft units, and the collective
bargaining agreement forbids craftsmen even to bid on other
positions. (Tr. 46-48). This factual error is one of the
district judge's own making; Gulf never suggested in the district
court that any such lines of progression existed.

Second, the district judge objected to evaluating actual
duty elements because he believed that virtually all employees
could do those tasks well.

[M]ost of Plaintiffs' actual duty elements involved 
abilities Plaintiffs should have already learned in the

25



Labor Division. For example, each aspiring craftsman 
had already acquired the basic "hands-on" skills in the 
use of tools and materials. (RE 40).

The district judge evidently believed, not without reason, that
an evaluation of the actual work of craftsmen would show
relatively few differences, and thus no correlation with higher
test scores. But if, as the judge assumed, relevant employee
abilities are too similar to distinguish by means of a test, the
conclusion compelled by Title VII is that the employer may not
use a test, not, as the trial judge reasoned, that the employer
can test instead for some skill not important to the job at
issue.

Third, the district judge reasoned that the tests were valid 
because they assessed an employee's basic intelligence, and that 
the same substantial conceptual skills were necessary to perform 
any craft job:

The tests were given to insure that an employee had the 
rudimentary skills necessary to be put into a training 
program.... Although the mechanics of each vary, the 
conceptual and intellectual competence and intellectual 
competence required to perform each job is not 
significantly different. The carpenter, the 
pipefitter, the mechanic, and other craftsmen all need 
the ability to conceptualize three-dimensional objects 
on the basis of two-dimensional drawings. Each must 
create physical objects in accordance with written or 
graphic specifications. All craftsmen must understand 
the geometrical relationship between the things they 
work with and be able to think in terms of area, 
volume, and length. (RE 40-41).

This passage is little more than an a priori assertion that smart 
people make better craftsmen. If a test or education requirement 
could be sustained on such a basis, Griggs. Albemarle and their 
progeny would be simply meaningless. This court has repeatedly 
rejected the use of general intelligence tests to select

26



craftsmen, absent substantial objective evidence that better
scoring applicants are in fact better craftsmen. Watkins v. 
Scott Paper Co.. 530 F.2d 1159 (5th Cir. 1976); Pettwav v . 
American Cast Iron Pipe Co.. 494 F.2d 211 (5th Cir. 1974); James 
v. Stockham Valves & Fittings Co.. 559 F.2d 310 (5th Cir. 1977).

(2) Even if its validation study had attempted to assess 
how well craftsmen actually did their jobs, Gulf was also 
required to demonstrate that there was an actual relationship, or 
correlation, between the test results and the work of the tested 
employees. The degree of correlation between test scores and 
actual success on the job is expressed, in statistical terms, by 
a "correlation coefficient." The value of the correlation 
coefficient can range from + 1.0 (workers with higher test scores 
always do better on the job) to -1.0 (workers with higher test 
scores always do worse on the job). A correlation coefficient of 
0 indicates that higher scoring applicants did neither better nor 
worse on the job than lower scoring applicants, and that, 
therefore, the test did not measure anything related to job 
performance.

In this case both defendants' and plaintiffs' experts 
expressly agreed that a correlation coefficient of at least + .30 
to .40 was necessary to establish the validity of a test. (Tr. 
1043, 1303). "The courts have commonly not accepted as valid a
test having a correlation coefficient of under .30" B. Schlei and 
P. Grossman, Employment Discrimination Law. 129 (2d ed. 1983). 
The decisions of this court require a correlation coefficient of 
that magnitude. Riviera v. City of Wichita Falls. 665 F.2d 531,

27



537-8 n. 9 (5th Cir. 1982) (upholding test with correlation of 
.38); Enslev Branch of NAACP v. Seibells. 616 F.2d 812, aff'q in 
part and rev'q in part 14 FEP Cas. 670, 681-82 (N.D. Ala. 1977) 
(upholding portion of study yielding correlation coefficient in 
excess of .30, but rejecting portion of study yielding 
correlation of only .25). Indeed, the greater the adverse impact 
of a test, the higher will be the required showing of job 
relatedness. 29 C.F.R. § 1607.14(B)(6) (1981), Guardians Ass'n 
of New York Police Dep't v. Civil service Comm'n. 630 F.2d 79, 
105-06 (2d Cir. 1980). Plaintiffs urged in the court below that 
Gulf's validity study did not meet the .30 standard;20 the 
district judge inexplicably failed to address this issue. (See 
RE 37) .

In this case Gulf sought to rely on its 1983 study to 
establish the validity of its test for selecting applicants for 
two different craft positions, boilermaker and pipefitter. Under 
the Gulf study each boilermaker was rated separately by two 
different supervisors, as was each pipefitter. Thus the initial 
result of the study was to yield two correlation coefficients for 
boilermakers, and two for craftsmen, based on the somewhat

Idifferent ratings of the various supervisors involved. The 
unadjusted correlation coefficients were .14 and .26 for 
pipefitters, and .23 and .26 for boilermakers. (DX 162, p. 38). 
Thus the initial results of the validation showed correlation 
coefficients consistently lower than the .30 to .40 level which

20 Plaintiffs' Proposed Findings of Fact and Conclusions 
of Law, pp. 34-40, 72-74.

28



Gulf's own experts conceded was necessary to estal 
validity of a test.

(3) Finally, the record is undisputed that approximatexy 
two-thirds of the employees who became craftsmen between 1947 and 
197 0 —  a group that was virtually all white —  never took the 
Old Test at all.21 These individuals continued to occupy 
craftsmen positions long after the New Test was instituted and 
have performed well. Indeed, Gulf's key personnel supervisor 
insisted that the employees who became craftsmen without taking 
either test were indistinguishable in ability and job performance 
from those who took and passed either the New or Old Test. (Tr. 
29-31). This testimony demonstrates clearly that neither test 
was in fact necessary for the selection of competent workers and, 
therefore, their use violated Title VII. See Griggs v. Duke 
Power. 401 U.S. at 431-432.
II. GULF ENGAGED IN INTENTIONAL DISCRIMINATION IN

DENYING PROMOTIONS BASED ON SICKNESS AND ACCIDENT
Plaintiffs offered undisputed evidence that Gulf officials, 

in exercising their subjective authority to deny promotions based 
on sickness and accident, rejected blacks at a rate 50% higher 
than whites. (PX 29) . The district court did not question the 
accuracy of those statistics, but nonetheless rejected this claim

21 The exemptions from the Old Test were made in two large 
groups. In 1956 Gulf and the OCAW agreed to Stipulation 30, 
which permitted a substantial all-white group of O & M workers to 
promote into craft position without taking any test just before 
the exclusion of blacks from the O & M division was ended. In 
1967 a total of 203 employees were promoted into craft position 
under Stipulation 29. These workers were given a simnplified 
special test; of the 204 workers who took that Simple Test only 1 
failed. Tr. 31, 984-85; PX 9, 13. See also PX 23, DX 94.

29



of intentional discrimination in a single sentence: "Gulf's S and 
A policy was applied equally to blacks and whites." (RE 42).

This circuit has repeatedly held that, where a plaintiff has 
presented evidence of purposeful discrimination, "a conclusory 
one sentence finding that merely brushes the evidence aside 
cannot stand." Chaiffetz v. Robertson Research Holding. 798 F.2d 
731, 734 (5th Cir. 1986).

If the trial court believes the employer's explanation 
of its motivation, the court may not merely state, in 
conclusory terms, that the plaintiff has failed to 
prove . . . discriminatory treatment. It must at least 
refer to the evidence tending to prove and disprove the 
merits of the proffered explanation and state why the 
court reached [its] conclusion....

Ratliff v. Governor's Highway Safety Program. 791 F.2d 394, 400-
01 (5th Cir. 1986) (footnote omitted).

Those statistics together with evidence of specific apparent
disparities in the treatment of individual blacks and whites were
sufficient to create a prima facie case of intentional
discrimination. Pavne v. Travenol Laboratories. 673 F.2d 798
(5th Cir. 1982), cert. denied. 459 U.S. 1038 (1983). The
discretionary evaluation of sickness and accident records
constituted the sort of "subjective standardless decision-making
by company officials" that often "is a convenient mechanism for
discrimination." Bunch v. Bullard. 795 F.2d 384, 398 (5th Cir.
1986), citing Bovkin v. Georgia-Pacific Coro.. 706 F.2d 1384,
1390 (5th Cir. 1983), cert, denied. 465 U.S. 1006 (1984).

Gulf might have rebutted that prima facie case in either of
two ways. First, Gulf might have offered proof that a higher
percentage of black senior bidders than white senior bidders had

30



missed 80 hours of work in the previous year, and were thus 
subject to scrutiny. Second, Gulf might have sought to prove 
that, among the scrutinized senior bidders, the S and A record of 
blacks during the previous year was on the average substantially 
worse than that of whites.

The sole evidence offered by Gulf in this issue, however, 
consisted of an analysis of the total S and A hours of blacks and 
whites who were rejected. (Tr. 1240). That analysis showed that 
rejected black senior bidders had on average been sick or ill a 
total of 28 days, while rejected whites missed an average of 24 
days. (Tr. 1238). But these figures represented the total 
number of absences during the workers entire career at the 
refinery; in their actual evaluation of S and A records, on the 
other hand, Gulf officials were concerned with a worker's record 
in the previous year, or, at most, in the worker's average 
absence per year. (RE 41). Indeed, it would have been 
irrational for Gulf to reject a bidder who had missed 
comparatively few days per year solely because he had been at the 
refinery for many years, and thus had a higher overall S and A 
total. Because of the long period of pre-act discrimination, 
blacks with several decades of seniority were bidding on craft 
jobs long after the whites with similar seniority had reached 
those positions.

The meager rebuttal evidence offered by Gulf was 
insufficient to overcome plaintiffs' prima facie case. Even if 
this court believes Gulf's evidence might have been sufficient to 
meet that burden, the disposition of this claim should be

31



reversed and the case remanded with instructions that the trial 
court provide an evaluation of the evidence sufficiently detailed 
to permit meaningful appellate review. Compare Chaiffetz v. 
Robertson Research Holding, supra.
III. THE DEFENDANTS UNLAWFULLY ABROGATED THE SENIORITY

RIGHTS OF BLACKS
Under Griggs v. Duke Power Co.. 401 U.S. 424, a prima facie 

violation of Title VII may be established by proof of the 
existence of "policies or practices that are neutral on their 
face and in intent but that nonetheless discriminate in effect 
against a particular group." The Stipulation 29 reclassification 
had an undeniable adverse impact on black employees. The 4.4% of 
the promotions which went to blacks under the reclassification 
was far lower than' the proportion of blacks among senior utility 
men, the proportion of blacks among senior employees throughout 
the refinery, or the proportion of blacks among the entire plant 
workforce. The selection rule that specially created 200 craft 
positions and restricted them to a virtually all white group 
was not based on seniority or "length of employment" at the plant 
or in a particular division. Cf. California Brewers v. Brvant. 
444 U.S. 598, 606 (1980). On the contrary, the helpers
"reclassified" into craft jobs invariably had less seniority than 
scores of black utility men.

At all other times since 1965, both before and after
Stipulation 29, employees have been able to rely on their
seniority in competing for desirable positions. The 1967
"reclassification" of 203 employees into craft positions both 
abrogated the seniority rights of blacks ordinarily entitled to

32



seek those positions, and had an adverse impact on that minority 
group. Although Gulf sought to explain its decision to abolish 
the helper position, it offered no justification for simply 
reclassifying the helpers as craftsmen, rather than requiring 
former helpers, as in the past, to compete for craft jobs on the 
basis of seniority. Indeed, Gulf insisted that the company's 
only interest was in abolishing the helper position, and that the 
reclassification had been proposed by the union, which wanted 
"life time jobs" for the 203 helpers, (almost all of them white) 
"reclassified" under Stipulation 29. (Tr. 731-32). In the 
absence of any business necessity, the 1967 reclassification 
violated Title VII as a matter of law.

In this case plaintiffs complain that the practice with 
discriminatory impact was the abrogation of their pre-1965 
seniority rights. Unlike the circumstances in Teamsters v. 
United States. 431 U.S. 324 (1977) and American Tobacco Co. v. 
Patterson, 456 U.S.63 (1982) where there was a conflict between 
the congressional policy of respecting seniority rights and the 
congressional policy against practices with discriminatory 
effects, here those two policies coincide. A practice which 
adversely affects blacks by abrogating their seniority rights 
conflicts with both of the policies at issue in Teamsters and its 
progeny. If, as Griggs and Teamsters hold, Title VII is 
presumptively violated by a practice, not based on seniority 
rights, that has a discriminatory effect, a fortiori a prima 
facie violation occurs where a defendant adopts a practice which

33



not only has such a discriminatory effect but also actually 
abrogates the seniority rights of blacks.
IV. THE SENIORITY SYSTEM WAS NOT BONA FIDE22

The seniority rules at the Gulf refinery, except for the 
seniority rights abrogated by Stipulation 29, generally had a 
discriminatory impact on senior black employees for many years 
after the effective date of Title VII. The district court 
correctly recognized that those seniority rules could not be 
upheld under Title VII unless the defendants could meet their 
burden of establishing that the seniority system was bona fide. 
(RE 27). Teamsters; James v. Stockham Valves & Fittings Co.. 559 
F.2d 310 (5th Cir. 1977). To establish that affirmative defense 
the defendants must prove that neither the genesis nor the 
maintenance of the seniority system were tainted by a 
discriminatory purpose.

The facts regarding the contours of the seniority system are 
not in dispute; the district court correctly found that under 
that system there were black Labor Division employees working in 
almost all of the operating and craft departments in the plant. 
(RE 24) . The district court's finding, and the facts underlying 
it, we urge, are sufficient as a matter of law to compel the 
conclusion that the seniority system was not bona fide.

The seniority system in this case is an even more egregious 
example of the sort of system held unlawful in Terrell v. United 
States Pipe & Foundry Co. . 644 F.2d 1112 (5th Cir. 1981). In
this case the existence of separate black and white jobs pre-date

22 See note 10, supra.
34



the creation of the so-called Labor and Operating and Maintenance 
Division. The original separation of black and white jobs within 
20 different departments was expressly racial in nature; black 
workers in a given department, no matter how great their 
experience and skill, were outside the white line of progression 
and could not bid on white jobs in their own department, whereas 
inexperienced whites from completely unrelated departments were 
free to bid on and promote into the white jobs. Some dispute 
exists regarding how this racial restriction was enforced, but 
neither the defendants nor the district court suggested that the 
promotion practices as they actually existed in 1950 were non- 
discriminatory.

The seniority system that had emerged by 1960 differed in 
little more than name from the original race-conscious system. 
The grouping of employees into two separate general divisions is 
neither unlawful nor suspicious per se. But in the instant case 
the division line largely ignored the actual departmental 
structure at the refinery. Employees working side by side in the 
same department were placed in separate divisions, while 
employees in totally unrelated departments were in the same 
division. Such a system, disregarding an employer's interest in 
placing together for seniority purposes employees who worked at 
the same unit or facility, would by itself be quite suspect. But 
here the boundaries of the new division system were precisely the 
same as the old "white" and "colored" jobs system. Within the 
twenty departments split among two divisions, blacks and only 
blacks were placed in the Labor Division, while whites and only

35



whites were placed in the O & M Division. The structure of the 
seniority system as it existed in 1965 was essentially the same 
as the race-conscious 1950 system.

Although the testing and one-day rules were rescinded in 
1963, and the high school degree rule was rescinded in 1971 under 
pressure from the federal government, the initial adoption of 
those restrictions throws considerable light on the purpose 
behind the seniority system. The 1956 promotion restrictions 
graphically demonstrate, as did Stipulation 29, that Gulf and the 
OCAW, although steadfastly adhering to seniority rules harmful to 
blacks, were ready and willing to take unprecedented and drastic 
steps to modify seniority rules where those seniority rules 
threatened to work to the advantage of blacks.23

23 The district judge argued that the three new 
restrictions were facially neutral, harming to blacks as well as 
to whites who might be in the Labor Division, and benefitting all 
workers regardless of race who had been originally hired into 
what was in 1956 called an 0 & M job. (RE 25, 29). In fact, 
however, there were no whites in the Labor Division, nor were 
there blacks in the O & M Division. It is difficult to see how 
these rules can even be characterized as facially neutral. The 
restrictions were expressly directed at all employees holding 
what were, at least until 1950, "colored" jobs; had the 
restrictions been adopted in 1950, and applied to transfers out 
of "colored" jobs, those rules clearly would have been racial. 
Surely the result is no different merely because Gulf had altered 
the terminology of its seniority rosters from "colored" to "Labor 
Division."

The district judge also reasoned that "[t]he purpose 
and effect of the [one-day] rule was to maintain the most 
qualified persons in their respective technical Craft Division 
positions." (RE 29). The district judge evidently assumed that 
the effect of the one day rule, like a departmental seniority 
rule, was to give preference in promotions to individuals with 
the greatest relevant technical experience. But the effect of 
the one-day rule was precisely the opposite. An employee's years 
of experience in his particular department were literally 
irrelevant. If a black with 20 years experience in a "colored" 
job in Package and Grease applied for a promotion within a white

36



V. GULF ENGAGED IN INTENTIONAL DISCRIMINATION IN MAKING
PROMOTIONS TO SUPERVISORY POSITIONS
The plaintiffs asserted at trial that Gulf engaged in racial 

discrimination in selecting those hourly employees whom it 
promoted to supervisory positions. Between 1965 and 1970 only 1 
of the 35 workers promoted to a supervisory position was black; 
until 1977-82 the proportion of these promotions being awarded to 
blacks remained less than half of the proportion of blacks at the 
refinery. (PX 16).

Gulf did not offer any response to the evidence of
individual acts of discrimination, and did not suggest that
plaintiffs' statistical evidence was inaccurate. Rather, Gulf
argued that the district court should consider only Gulf's total 
record over the 17 years from 1965 to 1982, rather than focus on 
the first decade when virtually no blacks were promoted to 
supervisor.24 The district court accepted this contention, 
refusing to consider, for example, whether there might have been 
discrimination during part but not all of that 17 year period. 
(RE 42).

line of progression, he would always be rejected in favor of a 
white from some unrelated department who had been in Package and 
Grease for only a year, since the black, but not the white, would 
have forfeited his seniority when he entered that white line of 
progression. Such a system of preferring inexperienced whites 
over experienced blacks is inexplicable except in racial terms.

The district court attached some importance to the fact 
that any white hired between 1956 and 1963 would have been 
required to take the test. (RE 25). In fact, however, there was 
virtually no hiring at the Port Arthur refinery between 1956 and 
1963. Tr. 790-92; PX 32, 34; cf. Tr. 315-16.

24 Gulf's Proposed Findings of Fact and Conclusions of 
Law, p. 58.

37



The district court erred as a matter of law in lumping 
together all promotions made over a 17 year period. The record 
makes clear that Gulf's promotion practices were far different in 
1982 than they had been in 1965 or 1970. If Gulf in selecting 
supervisors discriminated against blacks between, for example, 
1965 and 1975, it would be no defense to that practice that 
Gulf's record became significantly better after this action was 
filed in 1976. "Such actions in the face of litigation are 
equivocal in purpose, motive and permanence." Jenkins v. United 
Gas Corp. , 400 F.2d 28, 33 (5th Cir. 1965). See also James v. 
Stockham Valves & Fittings Co. . 559 F.2d at 325 n. 18 (5th Cir. 
1977) . Gulf's improved post-197 6 record is clearly insufficient 
to overcome the overwhelming statistical evidence of 
discrimination prior to the filing of this action.

On remand the district court will be required to determine 
when, if ever, Gulf ended the practice of discrimination which 
existed prior to the commencement of this action. In doing so 
the lower court should be directed to make more explicit findings 
regarding the positions from which supervisors were selected. 
Gulf urged below that the court should consider only employees in 
the No. 1 or highest level in each unit. The district court, 
however, noted that promotions had not been strictly limited to 
this group, finding only that Gulf "generally promoted upper 
level employees ... to supervisor." (RE 42). The record indeed 
demonstrated that Gulf selected its supervisors from among 
workers who did not hold the No. 1 job, and that Gulf in some 
instances actually selected lower level employees for supervisory

38



positions. (Tr. 112, 156, 1237, 377; PX 98, 100). Although
blacks were 11.35% of the No. 1 employees, they constituted 
almost twice that proportion of Gulf's overall workforce. In 
light of its finding that supervisory promotions were not in fact 
strictly limited to workers holding the No. 1 position, the 
district court should be instructed to make a specific and 
reasoned determination as to the percentage figure to be used in 
comparison with the actual rate of promotions.
VI. UNION LIABILITY

The district court correctly concluded that the liability of 
the defendant unions depends on the merits of plaintiffs claims. 
(RE 43-44). Specifically, union liability turns on whether the 
disputed seniority system was bona fide, and on whether
Stipulation 29 of the 1967 OCAW contract, insofar as it abrogated 
pre-existing seniority rights of blacks, violated Title VII. 
Accordingly, if this court reverses the trial court's disposition 
of either of these issues, it should reverse as well the decision 
of the district court regarding union liability.
VII. THE DISTRICT COURT ERRED IN ITS RULING ON INDIVIDUAL CLAIMS

Most of the claims of the individual plaintiffs are
controlled, by the disposition of the claims of classwide 
discrimination. Plaintiffs Bernard, Brown and Johnson were 
denied promotions because of the tests. Plaintiffs Bernard and 
Tizeno complain that their seniority rights as utility men were 
abrogated by Stipulation 29. Plaintiff Tizeno argues that his 
ability to promote into better paid operations positions was 
impeded by the disputed seniority system. Plaintiffs Bernard,

39



Hayes, and Tizeno allege they were purposefully denied promotions 
to supervisor because of their race. (RE 46-49). Reversal of 
any of the district court dispositions of the class claims would 
require reversal as well of the related individual claims. 
Donaldson v. Pillsburv Co. . 554 F.2d 825 (8th Cir. 1977) cert,
denied. 434 U.S. 856 (1977); Griffin v. Carlin. 755 F.2d 1516
(11th Cir. (1985) .

In rejecting the claims of plaintiffs Hayes and Brown that
they were unlawfully denied supervisory positions, the district
court held they had failed to establish a prima facie case
because they never "applied" for such a position. (RE 46-47)
This holding was erroneous for several reasons: there simply was
no application process at the Port Arthur refinery; the existence
of vacancies was never announced prior to 1982, and Gulf simply
solicited supervisors on a word-of-mouth basis. (Tr. 66-70).
Having proceeded in this manner, Gulf cannot reasonably complain
of a lack of applications from blacks.

[W]hen an employer uses such informal methods it has a 
duty to consider all those who might be reasonably 
interested, as well as those who have learned of the 
job opening and expressed an interest

Carmichael v. Birmingham Saw Works. 738 F.2d 1126, (llth Cir.
1984) . Because the district judge saw no evidence of cl-asswide
discrimination, the trial court believed black employees had no
reason to be deterred from applying for supervisory positions.
(RE 47). That argument highlights the flaw in the lower court's
view that Gulf's varying promotion records over the 17 years from
1965 to 1982 should all be lumped together. A black employee
interested in a promotion in 1975 might reasonably have been

40



deterred by the fact that only three blacks had been promoted to 
supervisor in the nine years since the adoption of Title VII; it 
is clearly wrong to suggest that such deterrence in 1974 was 
unreasonable because Gulf subsequently promoted 19 blacks to 
supervisory positions over the nine years that followed. (See PX 
16) .

Plaintiff Tizeno did learn of the existence of a particular 
supervisory position, and did make known his desire to be 
promoted. Gulf offered no testimony to provide any explanation 
for denying Tizeno the promotion, and Tizeno concededly had more 
than twice the departmental experience of the white actually 
awarded the job.25 The district court did not question Tizeno's 
qualifications, but held Tizeno had failed to establish even a 
prima facie case because he "offer[ed] no evidence that he was 
better qualified [than the white] for that position." That 
holding was wrong as a matter of law; a Title VII plaintiff 
denied a job or promotion is required, as part of his or her 
prima facie case, to prove only that he or she was qualified for 
the position at issue, not that he or she was better qualified 
than the successful white applicant. Moreover, if a defendant 
does not assess qualifications in the first instance, it cannot 
rebut a prima facie case by asserting lesser or no qualification.

25
deposition.

See PX 93, p. 2; PX 94, pp. 12-24; Exhibit 20 to Tizeno

41



Lams v. General Waterworks. 766 F.2d 386, 393 (8th Cir. 1985);
Nantv v. Barrows. 660 F.2d 1327, 1332 (9th Cir. 1981).
VIII. THE DISTRICT COURT ERRONEOUSLY RESTRICTED THE SCOPE OF THE 

PLAINTIFF CLASS
The district court originally certified a plaintiff class 

consisting of all black persons who either applied for or were 
employed in union jobs at Gulf's Port Arthur refinery on or after 
December 26, 1966. In a memorandum order issued on the eve of
trial, however, the court narrowed the plaintiff class by 
excluding employees who had signed releases pursuant to a 
conciliation agreement negotiated between Gulf and the EEOC, id. 
at 57-59.26 This decision to restrict the class was erroneous.

The district court stated that "[t]he evidence in the record 
in no way leads the court to question the legality of the 
releases." RE 57. This statement forms the linchpin of the

2 6The district court also excluded two other groups 
originally included in the plaintiff class: unsuccessful 
applicants for employment, RE 55, and members of unions other than OCAW, id. at 55-56.

Plaintiffs are not appealing the district court's exclusion 
of applicants from the plaintiff class. With respect to the 
exclusion of members of other unions, however, the district court 
misunderstood the nature of plaintiffs' claims. Plaintiffs did 
not claim that the craft unions discriminated against their own 
members. Rather, they claimed that the craft unions applied 
their seniority rules in a manner that "had the effect of 
preventing or deterring blacks in the OCAW from moving into those 
craft unions and job." Plaintiffs' Memorandum in Response to 
Defendants Motion to Modify the Class at 6 (emphasis added). 
Thus, plaintiffs named these other unions as defendants because 
the alteration of their intentionally discriminatory seniority 
rules might be necessary to afford the class of OCAW workers full 
relief. Cf. Fed. R. Civ. P. 19 (joinder of necessary parties). 
The issue of the other unions' presence in this lawsuit is 
therefore unrelated to the class certification issue, and the 
district court's order dismissing them as defendants should 
therefore be reversed.

42



district court's analysis, since the presence of effective 
releases provides the only articulated basis for the court's 
conclusion that the named plaintiffs and the employees who had 
signed releases (the "signatories") are not similarly situated. 
The approach taken in the memorandum opinion is entirely 
inconsistent with the established legal standard for determining 
the effectiveness of the waiver of a claim under Title VII.

The Supreme Court has made clear that, although "an employee 
may waive his cause of action under Title VII as part of a 
voluntary settlement," a court faced with an employer's assertion 
that a claim is barred by such a waiver must "determine at the 
outset that the employee's consent to the settlement was 
voluntary and knowing." Alexander v, Gardner-Denver Co. . 415 
U.S. 36, 52 & n. 15 (1974). As explained by this Court, a trial 
court should "'indulge every reasonable presumption against 
waiver.' To be effective, a waiver 'not only must be voluntary, 
but must be knowing, intelligent and done with sufficient 
awareness of the relevant circumstances and likely 
consequences.'" Mosley v. St. Louis Southwestern Railway. 634 
F.2d 942, 946, n. 5 (5th Cir.), cert, denied. 452 U.S. 906 (1981) 
(internal citations omitted). Thus, the decision whether a 
waiver is effective depends on a searching appraisal of the 
particular facts of each case. See Rogers v. General Electric 
Co.. 781 F .2d 452, 455-56 (5th Cir. 1986).

Mosley identified a variety of circumstances that should 
make courts especially wary of employee waivers— plaintiffs' 
limited education, their lack of legal experience, the absence of

43



counsel, and evidence of "overreaching" by the defendant 
employer. Id. at 94 6-47. In such cases, this Court concluded, 
the waivers should be subject to the "utmost scrutiny." id. at 
947.

Far from heeding Mosley's directive, the district court
completely ignored a critical fact: many of the waivers at issue
were obtained from signatories during the period when a "gag
order" prevented counsel for the class from communicating with
them. Both this Court and the Supreme Court have noted the
danger this gag order posed to the signatories' intelligent
evaluation of the conciliation offer. As this Court noted,

[D]uring the pendency of the conciliation offer, 
potential class members were substantially deprived of 
the opportunity to confer with the attorneys presumably 
most knowledgeable, concerning whether they should 
accept Gulf's offer or look to the suit for redress.
At they time they most needed counsel they were cut off 
from the attorneys most available until the time to 
make a choice had expired.

Bernard v. Gulf Oil Co.. 619 F.2d 459, 470 (5th Cir. 1980) fen
banc), aff'd, 452 U.S. 89 (1981). Similarly, the Supreme Court
noted that the gag order

may have been particularly injurious— not only to 
respondents but to the class as a whole— because the 
employees at that time were being pressed to decide 
whether to accept a backpay offer from Gulf that 
required them to sign a full release of all liability 
for discriminatory acts.

Gulf Oil Co. v. Bernard. 452 U.S. 89, 101 (1981).
As a result of the illegal gag order, not only were the 

signatories kept ignorant of a potential alternative avenue for 
obtaining relief but they were also cut off from a source of

44



free, expert legal advice, that was the practical equivalent of 
retained counsel.

When it is necessary to balance the merits of the 
employee's claim of discrimination and the likelihood 
of success on that claim against the degree to which a 
proposed settlement will substantially accomplish the 
relief sought, it is asking too much to expect an 
aggrieved employee or applicant to make an intelligent 
settlement decision without the opportunity first to 
confer with retained counsel.

Mosley. 634 F.2d at 945.
Two additional factors exacerbated the danger that employees 

would make an uninformed choice to sign the releases. First, the 
wording of Gulf's offer, which stated that "'[b]ecause this offer 
is personal in nature, Gulf asks that you not discuss it with 
others,'" Gulf Oil Co. v. Bernard. 452 U.S. 89. 91, n. 1 (1981) 
(interpolation in original)— clearly could have dissuaded laymen 
unaware of their entitlement to consult with the lawyer of their 
choice from seeking legal advice.27 Indeed, plaintiffs submitted 
affidavits from several signatories who would have sought legal 
advice but were deterred from doing so by this statement in 
Gulf's settlement offer.28 Second, the court's exemption of

27That the letter suggested talking to a Gulf official, or 
an EEOC official, does not cure this infirmity. Gulf officials 
could hardly be expected to provide potential signatories with 
objective advice. Nor, given the EEOC's entry into a 
conciliation agreement, could it provide appropriate guidance, as 
Mosley, which involved a virtually identical circumstance, makes 
clear.

28Plaintiffs sought to intervene as named plaintiffs several 
signatories. See Rec. 1440. To the extent that the district 
court was correct in holding that the named, non-signatory 
plaintiffs could not adequately represent the class of 
signatories who claimed their waivers were ineffective, it erred 
in not permitting intervention of representatives who could. 
Thus, either the district court's exclusion of signatories from 
the certified class or its denial of intervention should be

45



Gulf's conciliation efforts from the scope of the gag order 
resulted in employees receiving information regarding only one of 
their options, increasing the likelihood that they would sign the 
releases out of ignorance.

In the face of these factors, the appropriate course for the 
district court would have been to certify a class consisting of 
all the employees in the relevant job classes for purposes of 
determining the defendants' liability. Assuming that this Court 
reverses the district court's judgment dismissing plaintiffs' 
claims on the liability issues, defendants will have the 
opportunity, at Stage II proceedings, to challenge the claims for 
backpay advanced by individual claimants by asserting that those 
claims are barred because an individual signed a release. The 
requirement that each waiver be shown to be knowing and 
intelligent renders the district court's wholesale resolution of 
the issue at the class certification hearing both wrong as a 
matter of substantive Title VII law and inappropriate as a 
litigation management tool. Since the district court is required 
to consider the circumstances of each waiver individually before 
concluding that an individual's claim is barred, consideration of 
this issue should wait until the time when such individualized 
consideration is appropriate— the remedial proceedings.
IX. THE DISTRICT COURT ERRED IN NOT ADMITTING DEFENDANTS'

BUSINESS RECORDS
This case was tried in April, 1984, and the record was 

expressly left open for submission of additional evidence until

reversed.
46



June, 1984; the district court did not hand down its decision on 
the merits until September, 1986. In the fall of 1985, however, 
a dispute arose as to whether the court should consider certain 
exhibits submitted by plaintiffs. All of the exhibits were 
business records of the defendants, and all had been filed with 
the court the previous year. The district court excluded a total 
of 74 of these exhibits, more than half of all the exhibits 
offered by plaintiffs. (RE 65-68).

The district court reasoned, first, that many of the 
disputed exhibits "were not served upon" the defendants until 
after the record was closed. (RE 66) . This holding was 
inconsistent with the meaning and purpose of Rule 5(a), Fed. R. 
Civ. P. Although Rule 5(a) requires that evidence filed with the 
court also be served on the defendants, in this case the 
materials were the defendants' own documents, and had been 
produced by counsel for the defendants as part of discovery. 
Rule 5(a) was not intended to require a plaintiff to provide 
defendants with additional copies of documents already in their 
possession.

The district court also rejected certain exhibits on the 
ground "[tjhere is no evidence that said exhibits were timely 
filed." (RE 66). This problem was precipitated by the fact 
that, although the exhibits were in the possession of the court, 
the clerk's office had neglected to place on the documents a 
stamp indicating the date on which they were filed. Counsel for 
plaintiffs submitted an affidavit indicating that the exhibits in 
question had been handed to the clerk during the trial itself.

47



Rec. 1908. The judge's clerk indicated that while she sometimes 
neglected to date stamp documents offered at trial, she always 
date stamped documents received after trial by mail. id.29 
Under these circumstances the exclusion of these exhibits was 
clearly improper.

The federal ruls regarding filing and service should be 
"construed to secure the just, speedy, and inexpensive 
determination of every action." Rule 1, Fed. R. Civ. P. In 
resolving disputes about filing and service, the primary focus 
should be on whether there was prejudice to a party or a 
potential burden on the court. The disputed exhibits in this 
case were the defendants' own business records, and the exhibits 
had been filed with the court at least two years prior to its 
decision on the merits. The authenticity of the copies filed 
with the court was not in dispute, and their content was not in 
the least controversial. The materials dealt with and documented 
essentially undisputed facts, such as the structure of Gulf's 
lines of progression or the numbers of employees in particular 
positions. In such circumstances a district court in a non-jury 
trial should ordinarily proceed to resolve a case on the basis of 
all materials before it, rather than becoming embroiled in the 
sort of objections that were entertained and sustained by the 
court below.

Among the exhibits offered by the defendant at trial, 
the following were not date stamped by the Clerk: DX 30-121, 
123-127, 131-32, 140-52).

48



CONCLUSION
For the above reasons the judgment and opinion of the 

district court should be reversed.
Respectfully submitted

JULIUS LeVONNE CHAMBERS 
JUDITH REED 
ERIC SCHNAPPER 
PAMELA KARLAN

NAACP Legal Defense & Educational 
Fund, Inc.

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

ULYSSES GENE THIBODEAUX 
1925 Enterprise Boulevard 
Lake Charles, Louisiana 70601 
(318) 439-1060

STELLA MARIE MORRISON
1015 East Gulfway Drive 
Port Arthur, Texas 77640 
(409) 985-9358

Counsel for Plaintiffs-Appellants

May 1987

49



CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of May, 1987, I 

served a copy of the brief for plaintiffs-appellants and record 
excerpts on counsel for defendants-appellees by depositing same 
with an overnight mail delivery service or in the United States 
mail, first class postage prepaid, addressed as follows:

Janet L. Lachman 
Gulf Oil Law Dept.
1301 McKinney, 21st Floor 
Houston, Texas 77010 
(Overnight Delivery)
Carl A Parker
Long, Parker, Doyle & Murphy
One Plaza Square
Port Arthur, Texas 77642
Martin Dies
Stephenson, Thompson & Dies 
712 Division Street 
Orange, Texas 77630
Terry R. Yellig
Sherman, Dunn, Cohen, Leifer & Counts, P.C. 
1125 15th Street, N.W., Suite 801 
Washington, D.C. 20005
Norton N. Newborn
Norton N. Newborn Co., L.P.A.
Chagrin Plaza East, Suite 308 
23811 Chagrin Boulevard 
Cleveland, Ohio 44122
Donald W. Duesler 
3160 Fannin 
Beaumont, Texas 77701
L.N.D. Wells, Jr.
Mullinax, Wells, Baab & Cloutman, P.C.
3301 Elm Street
Dallas, Texas

Counsel for Plaintiffs- 
Appellants



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